allowed to compel specific performance even though the vendor might not have been able to maintain such a suit against him. The great object to be attained is that equity shall see to it that the decree in such a suit shall be so framed as to operate without injustice or oppression to either party rather than that its decree should be governed by some artificial rule.

In Jacob and Youngs v. Kent we established the rule that an innocent and inconsequential omission in the performance of a contract will not always be regarded as a breach of condition to be followed by forfeiture, but may be atoned for by the allowance of resulting damages. In that case a contractor building a house had innocently made an unsubstantial mistake which was so embedded in the building that it could not be corrected and we refused to allow such error to operate as a total defeat of recovery upon the contract, proper allowance being made for damages, if any, caused by the mistake. I think that common judgment would be that this modification of an old rule was perfectly just and distinctly in the interest of justice. In Lamb v. Cheney' there was for the first time firmly established in this state the rule that one who knowing of a contract, of employment for instance, without any excuse persuades the employee to break his contract and leave his employer is guilty of conduct which is malicious in law and for which he may be made to respond in damages. That certainly is a salutary rule in these days when there are altogether too many broken contracts.

In the old case of Thomas v. Winchester, decided nearly threequarters of a century ago, it was held that a druggist who carelessly labeled a poison as a harmless medicine and sold it to a dealer in drugs by him to be put on the market was liable to any person who was injured thereby even though there was no contract between the two. This rule of liability for negligence in the absence of a contractual relation was adopted somewhat as a matter of necessity and public policy, having in view the protection of human life. With all of the physical agencies now commonly used and which are a source of danger if negligently prepared, the rule against setting afloat mislabeled poisons has become of minor importance when compared with other sources of danger. New perils have created a need for new protection. Extending, therefore, the principle of the case of Thomas v. Winchester, it was held in the Statler case' and in the Buick Motor

Company case1o that manufacturers respectively of large coffee urns for use in public places and of automobiles who carelessly placed such appliances on the market in a defective condition, whereby their inherent dangers were increased, should be responsible to third parties who were injured as the result of such defective condition although having no immediate contractual relation with the manufacturer. Another case somewhat akin to the last one in that it really rested upon necessity and public policy was the case of Race v. Krum11 which for the first time in this State established the rule that independent of statute, accompanying all sales by a retail dealer of articles of food for immediate use, there is an implied warranty that the same is fit for human consumption. This particular case sprang out of the sale by a druggist of ice cream which was alleged to be unwholesome and to have been deleterious in its effects.

In Beardsley v. Kilmer12 there was argued the interesting question which for generations has given rise to so much discussion and debate whether a person may perform an act inherently lawful but the sole purpose of which is maliciously to injure another. Courts, law school teachers, and text writers have labored with this question without arriving at anything like an harmonious conclusion. In the case to which I refer the claim was that the defendants had started a newspaper for the sole and malicious purpose of destroying another paper and thereby depriving plaintiff of his employment. We reached the conclusion that in this case there were proper purposes in starting a paper as well as the intention to injure another and that, therefore, the action would not lie, but the Court did say that in some at least of the early New York cases in which it was stated that a lawful act was not made unlawful and actionable because there was a malicious and reprehensible purpose behind it, the statement was not necessary to a decision of the case and did express the view that the tendency in other jurisdictions in this country and in England has been toward the denial of the proposition that it is lawful to perform an otherwise legal act injuring another when there is no excuse for its performance except the malicious purpose of injury.

Of all the decisions to which I shall refer probably no one is more interesting or evolutionary than the case of Oppenheim v. Kridel, 13 which deals with the institution of marriage and with the relative rights of husband and wife. For ages it has been the general rule,

10MacPherson v. Buick Motor Co., 217 N. Y. 382 (1916).

11222 N. Y. 410 (1918).

12236 N. Y. 80 (1923)

13236 N. Y. 156 (1923).

broken only by a few exceptions, that while the husband could bring an action against one having wrongful relations with his wife, the wife had no such right of relief against a women who had had improper relationship with her husband. It was felt that this superior right of the husband and the differentiation between his rights and those of the wife were based upon age-old theories which had become illusory, outworn, and unworthy of the present age, and so we swept away these distinctions and held that the same right of action for criminal conversation would lie in behalf of a wife as in behalf of a husband. One may find himself out of sympathy with some of the present day demands of some women, like the one for instance that there shall be unnecessarily forced upon women the arduous and oftentimes excessively disagreeable duties of jury duty, for if women are to serve on juries it ought to be as a duty imposed on all rather than as a privilege to be grasped by a few who are eager for the experience, but from this last decision, as eliminating a rather barbarous distinction and bestowing equality of rights, it certainly will be difficult to dissent.

Lastly, I come to decisions dealing with the constitutionality of statutes. Generally the important statute which presents to our state courts the question of constitutionality is one enacted by the Legislature under the police power and the fundamental question is one of power. The rule is established by repeated declarations and fully accepted that we must approach the consideration of such a statute with the presumption of constitutionality and with earnest endeavor to find in it the feature of constitutional observance. This fundamental question which we are compelled to decide in the case of such a statute is not entirely unlike that which arises on a motion for a non-suit in an ordinary negligence action. There the Court decides whether the evidence is such as to permit a jury to say as a matter of judgment and fact that there has been a breach of duty which permits it to act. In the case of the police statute, the underlying question is the one whether the facts presumably before the Legislature were such as to permit the latter to say that there was such a public emergency or danger existent or to be apprehended as to justify the latter body in acting and seeking to find a remedy or avoid a danger. There is no unfailing test in either case; and when we reflect how frequently judges differ in respect of the former and simpler question, it certainly is not strange that courts often find it difficult to determine whether the basis for so-called police legislation does exist and that judges radically differ in their conclusions upon this question.

It is a truism to state that the Fourteenth Amendment does not set

out any infallible formula by which courts can determine whether a legislative act has passed the line of police regulation and intruded into the field sacred to individual liberty and property rights. Except as in a given case there may be found some decision of undoubted applicability the question is scarcely one of law in its ordinary sense. As has often been said, it is rather one of policy and state craft. A judge is required to consider the facts and information presumably before the Legislature, and of which he may take judicial notice, and then to pass upon the question of power, always distinguishing between the basic question of power and that of mere policy as exhibited in the details of legislation. In doing so, he exercises his practical judgment in the light of knowledge, observation, experience, and inherent inclinations and with consideration of what may be a deliberate and preponderating public opinion. For, the extent to which the exercise of the police power shall be carried is to some extent a matter of public opinion and policy; and it has been said again and again that while the meaning of the Constitution is not to be controlled by popular decision, and certainly not by popular clamor, nevertheless courts may and should consider widespread public opinion concerning the necessity for remedial legislation as evidence of legislative powers and undoubtedly they must give consideration to what has become a governmental policy in these respects.

In the familiar case of Muller v. Oregon,14 it was said by the Supreme Court, "Constitutional questions, it is true, are not settled by even a concensus of present public opinion, ***. At the same time, when a question of fact is debated and debatable, and the extent to which a special constitutional limitation goes is affected by the truth in respect to that fact, a widespread and long continued belief concerning it is worthy of consideration."

In Noble State Bank v. Haskell1 it was again said by the Supreme Court, "It may be said in a general way that the police power extends to all the great public needs. *** It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare."

And by the Court of Appeals of our own State it has been said that "The struggle to meet changing conditions through new legislation constantly goes on. The fundamental question is whether society is prepared for the change. The law of each age is ultimately what the

14208 U. S. 412, 420 (1907). 15219 U. S. 104, III (1910).

age thinks should be the law. Decisions of the court in conflict with legislative policy when such decisions have been thought to be unwisely hard and stiff have been met by constitutional amendment" to obviate the element of unconstitutionality which the courts had found.

And still again in the Jensen case16 upholding the constitutionality of the present Workman's Compensation Law and deciding that the provisions awarding compensation to an injured employee regardless of whether there was a cause of action at common law it was said that "This subject should be viewed in the light of modern conditions, ***. With the change in industrial conditions, an opinion has gradually developed, which almost universally favors a more just and economical system of providing compensation for accidental injuries to employees as a substitute for wasteful and protracted damage suits* **"

Of course no one doubts that during the last 30 years public opinion, governmental policy, and courts have adopted a much enlarged conception of the field which may be occupied by police legislation. The Jacobs case,17 decided in 1885 by the unanimous vote of an extraordinarily able Court of Appeals represented, I have no doubt, what was a perfectly fair and reasonable conception of the scope of the police power at that time. But, in all probability, at the present time the overwhelming judicial view would be that the act there involved was within the realm of the police power. It has been perfectly natural and proper that the exercise of regulation should increase with the increasing complexity of conditions which needed regulation. Regulation which was sufficient for the more simple conditions of 25 or 50 years ago would be utterly inadequate to cope with those now existing. The danger to be guarded against is that in such extraordinary times as those through which we are now passing the clamor for paternalism and regulation may exceed all reasonable bounds and find its reaction not only in legislation but in decisions. I trust and believe that such may not be the result in this State.

I shall refer to what seem to me to be the outstanding decisions rendered by the Court of Appeals during the last few years upholding the constitutionality of statutes passed in the exercise of the police power.

In People v. Klinck Packing Company's there was upheld the validity of a statute requiring with certain exceptions that every employee

16 Matter of Jensen v. Southern Pacific Co., 215 N. Y., 514, 528 (1915). 17In re Jacobs, 98 N. Y. 98 (1885).

18214 N. Y. 121 (1915).